Massey fights back with OSM lawsuit

A.T. Massey Coal Co. is fighting back against increased federal government oversight of mountaintop removal mining in West Virginia.

Massey subsidiary Independence Coal Co. filed a federal court lawsuit last week to throw out a federal violation issued to one of its mines by the U.S. Office of Surface Mining.

Lawyers for Massey cited a 1996 court ruling, written by Chief U.S. District Judge Charles H. Haden II, which severely limited OSM's ability to cite coal companies for environmental problems.

Haden is also hearing what could become a landmark case in which environmental groups want to curb mountaintop removal mining's environmental impacts.

In the Massey case, OSM stepped in when federal officials felt the state Division of Environmental Protection didn't properly enforce regulations at a Massey operation in Boone County.

According to court papers, Massey in 1997 had widened County Route 79/1 near Jacks Branch so its coal trucks could maneuver more easily.

The company, however, used waste rock and earth that it removed from a mountaintop to build the widened road, the court papers said.

DEP inspectors issued an order that Massey stop the project because the company's surface mining permit did not have a provision allowing the company to dispose of mine waste on the road.

At some point, DEP withdrew its order.

The company argued it had Division of Highways approval for the project.

Massey also argued that the road expansion "actually diminished the impact of truck operations in the area by allowing trucks to egress County Route 79/1 more quickly and without the use of their jake brakes."

A Boone County resident, Randy Hager, appealed the matter to the state Surface Mining Board.

In December 1997, the board ruled that the project did require a permit, but that DEP should have granted a permit for the road construction.

The day after the board ruled, OSM issued a 10-day notice, a regulatory vehicle that requires the state to explain to OSM why it did not take a particular enforcement action.

Under the 1977 Surface Mining Control and Reclamation Act, states have primary authority to regulate strip mining.

OSM is supposed to make sure states do a good job.

When OSM wasn't happy with DEP's response to the 10-day notice, OSM inspector Sam Turner issued a federal notice of violation. Federal NOVs are rare. In West Virginia, OSM issued only 14 NOVs in 1996. Figures for 1997 were not available on Friday.

On Wednesday, Independence Coal filed a lawsuit in U.S. District Court in Charleston.

OSM Director Kathy Karpan and OSM are named as defendants. Also named as defendants are the U.S. Department of Interior and Interior Secretary Bruce Babbitt. OSM is part of the interior department.

In the company's suit, Massey lawyer Bob McLusky cited a 1996 ruling in which Haden ruled that OSM can only intervene in such cases if the state does not show "good cause" for its action or inaction.

McLusky said that the Surface Mine Board's ruling justified DEP having a good cause to take no further action against Massey.